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TMI Blog2024 (12) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... provided by the appellant under the said contract were not preparatory work to mining activities but they were carried out to win the minerals and constituted mining activities per se, we hold that the views expressed by Commissioner of Central GST (A) in para 8 of the impugned order are incorrect and contrary to the statutory provisions. We also carefully referred to the circulars cited in impugned order, however in view of discussion and plain reading of law as it stood at the relevant time, we do not find any merit in the decision taken in the impugned and thus we hold that the services provided by the appellant under the said contract are in the nature of mining services so defined in clause (zzzy) of sub-section (105) of section 65 of the Act and not falling within the meaning of Site formation and clearance, excavation and earthmoving and demolition defined in clause (97a) of section 65 of the Act. We also hold by following the principles laid down by the Apex Court that the said services cannot be subjected to tax prior to 01.06.2007 and accordingly the appellant merits refund of amounts paid by them. Facts relating to the contract number 53223 dated 07.12.2004 are not verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue to pay interest u/s 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund u/s 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. Thus the appellant is entitled for interest from the expiry of 3 months from the date of original application filed for claim of refunds before the jurisdictional authority till the date of sanction. Thus finding from the facts and records that services provided by the appellant under contract are not preparatory work but they are mining activities per se, services provided prior to 01.06.2007 were not taxable and thus the impugned order is modified to that extent and the appellant is allowed refund with consequential relief of interest as per above. The appeal filed by the Appellants is partly allowed in the above terms. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Jigar Shah, Shri Amber Kumrawat, Advocate for the Appellant Shri Tara Prakash, Deputy Commissioner (AR) for the Respondent ORDER RAMESH NAIR The present appeal is filed by the Appellant against the Order in App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t preferred an appeal before the first appellate authority. Against the said order in appeal rejecting the refund claims, the appellant filed an appeal before this bench and which were decided by Final Order No. A/11021-11023/2019 dated 19.06.2019 and remanded back to the original adjudicating authority for reconsideration. 1.3 Pursuant to the remand of the case, jurisdictional authority re-examined the facts and again rejected the refund claims and also rejected the eligibility for interest on claims of refund and passed the order in original no GST-06/Refund/07/AC/JRS/Ranjit/2020-21 dated 15.06.2020. Being aggrieved with the said order of rejection, the appellant preferred appeal before the first appellate authority vehemently arguing eligibility for refund as well as interest thereon, however they did not find favour. Being aggrieved with the said order passed by the Commissioner (Appeals) vide Order-In-Appeal No. AHM-EXCUS-002-APP-004/2021-22 dated 11.05.2021 rejecting the appeal, the appellant has preferred an appeal before this Tribunal. 2. Shri Jigar Shah, Learned Counsel with Shri Amber Kumrawat, Advocate appearing on behalf of the appellant submitted the written submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.43 and accordingly the aggregate price is Rs. 45.51 per CM. Thus, the rate of excavation in the total price is 25% whereas rate of transportation, which is the major and substantial part comes to 65%. However, looking to the various terms and conditions incorporated in the contract and the scope of the contract, we find that the contract is a composite turnkey project and thus it is not capable of being vivisected into parts for the purpose of taxation and that is the settled principle of fiscal law which requires no further elaboration. Since the contract is a turnkey project, it needs to be evaluated and interpreted in its totality and not individually for its components. Thus the classification of the entire project cannot be determined on the basis of one component i.e. excavation loading etc, which is minuscule as compared to total contract price. We also find that the major component of the contract is transportation which is almost 65% of the total contract price and if the contract has to partake the shape or colour only from its constituents it shall be the transportation activities and not the excavation. In case the entire contract shall be classified only as per its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or similar purposes, the services provided by the appellant do not fall within this first category. Second category is about soil stabilization which is also out of place for the contract on hand. Third category is horizontal drilling for passage of cables or drains or pipes which is not the case here. Fourth category is land reclamation work which is completely inapplicable here. Fifth category is stripping of contaminated top soil which is not the case since the overburden removed by the appellant is not that of contaminated soil but the minerals in themselves. Last category is respecting demolition, wrecking of building, structure or road which is obviously out of relevance to the contract in dispute. Thus, the services undertaken by the appellant under the contract do not fall within the ambit of site formation and clearance, excavation and earthmoving and demolition as defined under clause (zzza) of sub-section (105) of Section 65 of the Finance Act, 1994. While the definition provided in clause (97a) is inclusive in nature, it is well-established that an inclusive definition must be confined to activities that are ejusdem generis, or of the same class or nature as those expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in section 2(j) the Mines Act, 1952 which read as follows : (j) mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes-- (i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oilfields; (ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not; (iii) all levels and inclined planes in the course of being driven; (iv) all open cast workings; (v) all conveyors or aerial rope ways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom; (vi) all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine; (vii) all protective works being carried out in or adjacent to a mine; (viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management; (ix) all power stations, transformer sub-stations, convertor stations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso find that the activity which is though does not result into mining per se, but concerns or pertains to the act of mining shall also be deemed as mining services due to expression in relation to used in clause (zzzy). Hon ble Supreme Court in case of Doypack Systems clearly laid down that the expression in relation to has wider connotation and it is synonymous to expression pertaining to or concerning with . Relevant part of the decision is as under :- 48. The expression in relation to (so also pertaining to ), is a very broad expression which pre-supposes another subject matter. These are words of comprehensiveness which might both have a direct significance as well as an indirect significance depending on the context, see State Wakf Board v. Abdul Aziz (A.I.R. 1968 Madras 79, 81 paragraphs 8 and 10,following and approving Nitai Charan Bagchi v. Suresh Chandra Paul (66 C.W.N. 767), Shyam Lal v. M. Shayamlal (A.I.R. 1933 All. 649) and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... newly enacted by the parliament w.e.f. 01.06.2007 was not covered under any categories prior to such date. This principle has been categorically laid down by the Hon ble Supreme Court in respect of works contract by way of decision in case of Commissioner v. Larsen Toubro Ltd 2015 (8) TMI 749 which is followed in case of Total Environment Building Systems Pvt Ltd v. DCCT 2022 (8) TMI 168 by Hon ble Apex Court and in case of N J Devani Builders P Ltd v. UOI 2020 (11) TMI 798 by Hon ble Gujarat High Court. Thus, we find no difficulty in following the same golden principle settled by the courts that the services are not liable to service tax prior to the date of enactment of particular entry to which they classify. Since, the services involved in the contract are found to be classifiable under clause (zzzy) of sub-section (105) of section 65, they shall not be liable to tax prior to date of its enactment i.e. 01.06.2007. We find that the similar view has been taken by this bench in case of Associated Soap Stone Distributing Company P Ltd v. CST 2022 (3) TMI 511, relevant para is as follow : From the above judgment, it can be seen that in the appellant s own case similar activities we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate issued by the Gujarat Minerals Development Corporation Ltd., who is the recipient of service in this case, makes it clear that the work of overburden/interburden removal is a part of mining during the course of mining therefore. The service is pre-dominantly related to mining. We find that even if, the contention of the revenue that the activities of the appellant taken independently is of Site Formation and Clearance, Excavation and Earth Moving and Demolition but at the same time, all these activities undertaken by the appellant is for the purpose of mining only. In this position, we find that if at all, there is a doubt about the particular service to be classified under one or more category the principle laid down for classification of taxable service under Section 65A need to be applied. The same is reproduced below:- SECTION 65A. Classification of taxable services. (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clauses of clause (105) of section 65; (2) When for any reason, a taxable service is, prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jor constituent of the contract was transportation of goods. If the activity presumed to fall outside the scope of (zzzy) of sub-section (105) of section 65, it is necessary and inevitable to hold that the said services are classified as per its material and predominant constituent which is transportation of goods and not liable to service tax. Hence, going by that proposition advanced by the appellant in their claim, the activity was not resulting into taxable service and did not attract service tax. Since we have already explained the necessity to read the contract in its entirety and finding the mining service to be more specific, appropriate and applicable category, we do not delve upon the classification of such services as transportation of goods. 4.12 In view of above and in light of material findings from the evidences that the services provided by the appellant under the said contract were not preparatory work to mining activities but they were carried out to win the minerals and constituted mining activities per se, we hold that the views expressed by Commissioner of Central GST (Appeals) in para 8 of the impugned order are incorrect and contrary to the statutory provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, we hold that the appellant is eligible for refund of Rs. 4,60,77,978. 4.17 We find from the facts and submissions made by the appellant, more particularly the invoices attached to the refund applications and certificate from the chartered accountant that the incidence of such tax was borne by them and therefore bar of unjust enrichment was not applicable. We also find that said documentary evidences were furnished by the appellant to the lower authorities and against which no plausible explanations or contemporaneous evidences have been brought on record by the revenue to inflict bar of unjust enrichment. Therefore, we hold that the appellant has crossed the bar of unjust enrichment since the burden of tax was borne by themselves. 4.18. Regarding the interest on refund prayed by the appellant we find that the adjudicating authority in order-in-original ordered to deny the interest on refund to the appellant. As held by us above, the Appellant is eligible for refund of Rs. 4,60,77,978 and since the interest is consequential in terms of Section 11BB of the Central Excise Act, 1944 we hold that the Appellant is eligible for interest on delayed payment of interest in terms of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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